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Heller: ruling re oral argument
Today the Supreme Court issued an order:
1) The motion of Heller & the Texas Solicitor General, to divide argument and give Texas ten minutes of Heller's time is denied.
2) The (US) Solicitor General's motion for 15 minutes of argument is granted.
Hard to read much into it, beyond the fact that it gives a tactical advantage to DC. 45 minutes of argument for reversing D.C. Circuit, only 30 of argument for affirmance. DC can probably figure the SG won't use a lot of time arguing for the individual right. The key to the SG getting where they want to go is standard of review, intermediate rather than strict scrutiny, so that's where the SG will spend his time. DC can cut back on argument over standard of review -- which might have occupied half their time, and more than half if they appeared to be losing on individual right -- and use the time elsewhere.
UPDATE: it ought to be noted that when the SG asks for argument, he gets it. Maybe he may have gotten turned down in the past, but I've never heard of it happening. I don't know what percent of motions for divided argument are granted, but it may not be high (hard to split up 30 minutes very well). So this may just be SOP, with a tactical outcome that benefits DC. Correction inserted here. DC gives first speech, and in theory can reserve some time for rebuttal and thus go last. In practice, that's very difficult to do with nine Justices asking a continuous stream of questions. Heller goes second or perhaps third, depending upon where the SG is put. I'd expect him to be put before Heller, to give a chance to answer whatever he says.
Hat tip to reader Jack Anderson.
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Anything to stack the deck in favor of government control.
And the Texas SG didn't even ask for an extension--just to allow a tag-team approach.
It's tempting, at times like these, to try to read in some subtle motive, such as "The Court sees how desperate D.C. is, and wants to give them plenty of rope to hang themselves", but frankly, I think this just means the Court is sympathetic to D.C.
Not good news.
This is worrying.
On the one hand, the SG argument is a "neither-nor" brief...though an argument can be made that it is somewhat more against Heller.
On the other hand, it offers the chance for a justice to force them to acknowledge that their brief DOES concede the individual rights argument.
My own assessment is that the individual rights argument has won. The case for it is overwhelming - and an attempt to knife gun owners in the back can be done more subtly.
Standard of review is important, but mostly for future questions. The SG argument is to kick the can down the road.
Where I see the fight taking place is in the question of what constitutes a "reasonable" restriction. All briefs seem to concede that there are limits to the Second Amendment - the question is where those limits lie. And if I wanted to stab the Second Amendment in the back, that's where I'd do it.
One question, though...who goes first? DC or Heller?
I don't think you can read into this a conclusion that the Court is pro-D.C. It may be no more than collegial. Nobody appears before the Court more than the Solicitor General and while the Court may be interested in hearing what the SG has to say, it is just as likely that the Court has said: "The SG wants a little more time? What the hell, let him have it."
Mike, I think you may have hit on what's going on: the Court is looking for guidance on what the appropriate standard of review is, not on interpreting the Second Amendment, or even the D.C. statutes.
The Texas SG's brief is just more argument on how to interpret the Amendment itself. If he had argued for a stricter standard than the US SG did, perhaps he would have been granted the time.
I'm crossing my fingers here, and waiting for orals. I agree that the briefs for Heller are devastating to D.C.'s case, and to the gun control cause generally. I think the way the Court rephrased the question shows they intend to directly address the real issue, and even that they have some sympathy for the RKBA.
David, thanks for the update. I'm very relieved to hear this.
Having Gura go first worries me more than the SG getting time. It's always a good idea to be able to get in the last word.
How was this decided? How many justices had to agree to hear the SG and how many to not hear Texas?
Yeah, I agree that is a much more important detail. If it was liberals + kennedy to add on the SG, I am worried. It it was a quick 9-0 decision I'm less worried.
I'm not a lawyer so this is just a regular guy's opinion. I don't see how SCOTUS can affirm the second as a right but subject to a lower level of scrutiny than the other amendments. Aren't the BORs all fundamental rights and a limit on government power? If SCOTUS sets a precedent that even a fundamental right listed in the BORs is subject to whatever politicans feel like, then we are in alot of trouble as a country. We have lost alot of liberty in the past 70 years and its only going to get worse. I pray SCOTUS has the nads to do what is right.
David, thanks for the correction. It's only natural for Petitioner to petition the court, and for the Respondent to respond. In other words, it makes sense that Gura argue after Dellinger.
That said, I am not at all surprised that Clement was given time...and I don't find it odd at all that Cruz was not. I suspect that argument time issue posted above is very minor if not insignificant.
Chuck,
From the wording of the question SCOTUS has agreed that it is an individual right, but they have not agreed that it is a fundamental right. Like you I am not a lawyer and from the writings of the original authors THEY saw it as a fundamental right. However, since gun control seems to be more about controlling the populace and removing the tools for effective resistance I expect that SCOTUS is trying to find some way to allow gun control. While I understand that all of the participants in this circus agree that they think that there ought to be limits imposed on the 2nd, I am unable to reconcile that with the language. "...the right of the people to keep and bear arms shall not be infringed." Seems to be pretty clear that ANY laws infringing that right would be unconstitutional. Naturally this does not invaliate laws against murder, assault or other offences perpetrated by the user of such tools. This is the genesis of the argument about yelling fire in a theatre. You are capable of doing so, and no law exists forbiding you from doing so. However, you are still culpable for the consequences of your actions.
Well...
I feel a bit better now. Having the last word is a pretty good advantage to have.
May Heller et al remind SCOTUS that, according to 2ndA wording, it is the MILITIA that is expected to be "regulated", not arms.
The appearance of unfairness by the Court is now certain. 45 minutes for the Petitioner and only 30 minutes for the Respondent. Even a 5th grader knows that isn't impartial.